In a huge relief for Pakistan’s self-exiled former dictator, the Lahore High Court on Monday declared Pervez Musharraf’s trial in the high treason case as “unconstitutional.”
A special court had given death sentence to the ex-Army chief on December 17 for holding the Constitution in abeyance.
Lawyer Usama Malik said the High Court pointed out that Cabinet approval wasn’t given for the formation of the special court and it was only constituted by the Prime Minister’s Office and the Interior Ministry, which is illegal.
The High Court said Section 9 of the Special Court Amendment Act was illegal as it violated Article 10-A of the Constitution, which is about fair trial.
Mr. Malik told The Hindu that according to the court, when emergency was declared in 2007 and the Constitution was held in abeyance, the punishment for holding Constitution in abeyance wasn’t death penalty as the offence wasn’t considered high treason. The High Court said this was added in the 18th Amendment passed in 2010.
The court said Gen. Musharraf cannot be punished for something that wasn’t punishable back then.
Mr. Malik said the government or Gen. Musharraf have not appealed the December 17 decision of the special court before the Supreme Court yet. Whether they will do so or not will be confirmed soon — presumably after the detailed High Court judgment comes out.
“Another point of view is that while constitution of the special court has been declared illegal, whether the punishment stands or not is important. We will know after the detailed judgment comes out. The High Court says that Article 6 doesn’t apply to the 2007 emergency as Article 232 gives power to the President to declare emergency under special circumstances,” Mr. Malik said.
Faisal Chaudhry, Additional Advocate General Punjab, said “it seems as if Musharraf has been exonerated by the High Court.”
Bars reaction
Asked about the future course of action, Mr. Chaudhry, who has also represented Gen. Musharraf in the treason case in the past, said that one will have to see how the legal fraternity like the Bar Associations and Supreme Court react. “There are fair chances that the Bars will react negatively to this verdict.”
A senior lawyer on the condition of anonymity said that after the passage of the Army Act, “Politics has been buried by the political parties themselves.”
The lawyer wondered what the Bar associations will do when all political parties have capitulated.
Abid Saqi, member of the Pakistan Bar Council, said, “Setting aside of the verdict of the special court without availing appellate court and getting reversal of that judgment through collateral proceedings is not just unprecedented but inconceivable.”
Reema Omer, legal adviser, South Asia International Commission of Jurists, said it would be premature to comment on the legal reasoning behind the High Court’s order before the detailed judgment is released, but from the reports of the proceedings, it appeared legally flawed and in contradiction with earlier Supreme Court judgments on the same issues.
“For instance, the SC had already decided the special court could continue with General Musharraf’s trial and the federal government could investigate other aiders and abettors separately if required. It had also ruled that unlawfully amending or suspending the Constitution amounted to subversion of the Constitution - which has been a part of Article 6 since 1973 - so the question of retrospective application of amendments to the provision in 2010 did not arise. However, these issues were still discussed again in the proceedings before the High Court.
“This is perhaps not surprising given General Musharraf’s lawyer, the Attorney General’s office, and the court-appointed amicus (Barrister Ali Zafar, a member of the PTI) were all on the infamous ‘same page’, and alternative points of view were not presented before the Court.”
(With PTI inputs)
